Judicial act: Resolution of the Arbitration Court of the North-Western District of October 4, 2021 in case No. А56-20124/2020
Court's findings:
1. The courts of the first and appellate instances dismissed the claims of the plaintiff. AS SZO (cassation) supported the conclusions of the lower courts.
2. Legislation does not exclude the possibility of qualifying an agreement concluded with an employee of the company or its individual provisions as an interested party transaction.
3. Since the employment contract in question and the additional agreement to it were signed on behalf of the company by an authorized person - the chairman of the meeting at which the decision was made to appoint the general director, the plaintiff did not provide evidence that this contract causes damage to the company. In itself, the condition for the payment of compensation for the early termination of the employment contract with the head does not contradict the current legislation.
Comment:
1. The main task and purpose of the institution of large transactions is to prevent the disposal of significant assets of the company without the consent of the participants (shareholders) of the company. In this regard, the conclusions of the court on the possibility of qualifying an employment contract as an interested party transaction are correct.
2. The court noted that in order to qualify an employment contract as an interested party transaction, it is important to assess how its terms corresponded to the usual terms of employment contracts concluded with specialists of similar qualifications and an appropriate professional level, taking into account the nature of the employee’s duties, including non-disclosure of information, non-competition (after dismissal), the scale and profitability of the business, etc.
3. At one time, the Supreme Arbitration Court of the Russian Federation noted that “the possibility of qualifying an employment contract as a major transaction may be evidenced by the payment of funds to an employee in the event of dismissal and (or) the occurrence of other circumstances or wages for the period of the employment contract, the amount of which is 25 or more percent of the book value of the company's assets. In case of conclusion of an open-ended employment contract, one year is taken as the settlement period for the purposes of evaluating the transaction.
4. It is worth noting that the qualification of an employment contract as an invalid transaction applies only to extraordinary actions resembling major transactions and transactions with interest, and both the employment contract and its individual conditions (for example, introduced later by an additional agreement) can be evaluated.
5. In some cases, judicial practice concluded that, taking into account the subject and grounds of the stated requirements for the correct resolution of the dispute, finding out whether the qualifications of the director corresponded to the remuneration received and the ratio of the salary to the size in other companies of a similar profile was not of decisive importance.
6. It turns out that the "market" level of the director's salary is not a 100% guarantee of protection for him, as it might seem. At the same time, further judicial practice will most likely have to determine the “legitimate” level of remuneration and compensation in case of dismissal in such a way that it does not turn into a redistribution of the company’s profits.
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